A Guide to Mediation & Collaborative Divorce

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Divorce Without Court

A Guide to Mediation & Collaborative Divorce

Legal forms included

Katherine Stoner

June 2018, 5th Edition

Get essential information on how to end a marriage fairly and inexpensively, using divorce mediation or collaborative divorce. Encouraging and straightforward, Divorce Without Court guides you through a negotiated divorce, explaining how to:

Product Details

Avoid divorce court with mediation or collaborative divorce

Ending a marriage is always difficult, but you don't have to be overwhelmed by financial or emotional conflict. Through mediation or a collaborative approach, you can avoid huge legal bills while protecting your kids from debilitating conflict.

This book guides you through all the steps of negotiating a divorce settlement, using divorce mediation or the innovative approach called "collaborative divorce." Encouraging, straightforward and inspiring, Divorce Without Court explains how mediation and collaborative divorce work for all kinds of families and shows you how to:

choose the right technique for your family

maximize opportunities for settlement

get an agreement in writing

find and use advisers

protect your children first, last and always

Divorce Without Court provides key state court websites, contact information for mediation organizations, and clear examples of what you can expect in either mediation or collaboration. This new 4th edition has been revised to reflect the most current trends in mediation, collaborative practice, and divorce law.

"Finally -- a realistic and balanced approach to getting divorced without costly court battles. This accessible book takes divorcing couples through the entire process." - Gary Friedman, Author of a Guide to Divorce Mediation

"A person considering divorce could not have a more valuable resource than Divorce Without Court. A comprehensive step-by-step guide through the process for people who want to avoid the expense and damage of litigation." - Chip Rose, Author of Collaborative Family Law Practice

About the Author

Katherine E. Stoner is an attorney/mediator in private practice with the firm of Stoner, Welsh & Schmidt in Pacific Grove, California. In addition to mediation, her practice includes consulting attorney services for clients who are in mediation. Ms. Stoner is a Certified Family Law Specialist, who teaches community property at Monterey College of Law and is on the training staff of the Center for Mediation and Law in Mill Valley, California. She has lectured extensively on family law and mediation and has been interviewed by major media including NBC's Today Show.

A. How to Use the Downloadable Forms on the Nolo Website

B. State Court Websites

Index

Sample Chapter

Divorce Without Court: Your Best Option

It’s happened. The thing you thought would never happen to your marriage. You and your spouse are divorcing. Your friends tell you, “You need protection. Get yourself a good lawyer.” You call a lawyer who has been highly recommended. The lawyer wants a $5,000 retainer, payable at the time of the first appointment.

You consider doing your own divorce. You go online and look for help. The forms and procedures seem overwhelming. Besides, the websites you find seem to be aimed at people who have ironed out their differences. Every time you and your spouse try to talk about how you will divide things up, who will have custody of the children, and how much child support will be paid, you end up arguing without getting anywhere.

Even if you and your spouse can agree on everything, you’re afraid you might overlook something. You want some help with the divorce, but you can’t afford the huge retainers that lawyers charge. What’s more, you’re afraid of starting your own personal version of World War III by getting lawyers involved.

If you find yourself in this sort of situation, you will benefit from reading this book. We describe how you can get as much help as you need for the divorce—at a price you can afford—by using a neutral professional known as a mediator, or by seeking out lawyers who offer a new approach to resolving the issues in divorce cases, called “collaborative law” or “collaborative divorce.” A mediator or two collaborative lawyers (one for each of you), can help you and your spouse reach a complete agreement that will settle your divorce case without a costly legal battle. A mediator does not impose a decision on you. Nor do your collaborative lawyers decide for you. The two of you decide what’s best for you, with their help.

What Exactly Are Mediation and Collaboration?

Of course, there is no such thing as divorce without court. To be divorced you need a court decree at the very least. But short of doing all the work leading up to the decree yourself, mediation and collaboration come about as close as can be to divorce without court.

What Is Mediation?

In mediation, a trained neutral third party (not necessarily, but ideally, a lawyer) helps you and your spouse negotiate a complete settlement of all the issues that must be decided in your divorce—from the legal and financial to the social and emotional. The mediator does not decide for you, so you have control over the outcome of the case. In mediation, you and your spouse communicate directly as much as possible. Even when you communicate through the mediator, having fewer people involved in the communication cuts down on the chances of a misunderstanding.

Mediation is informal. You and your spouse, with the mediator’s help, set all the ground rules for exchanging information. You control the timing and the scope of the entire process, without having to adhere to elaborate (and expensive) legal procedures. Mediation usually takes much less time and is usually much less expensive than litigation. It can even take place all in one day, although most divorcing couples meet for several sessions on separate days over a period of days, weeks, or months.

What Is Collaborative Divorce?

Collaborative divorce (also called collaborative law or collaborative practice), is a process in which you and your spouse negotiate an acceptable agreement with some professional help. Instead of using one neutral mediator, you and your spouse each hire a specially trained collaborative attorney who advises and assists you in negotiating the settlement agreement. You meet separately with your own attorney and the four of you meet together on a regular basis, in “four-way” meetings. Collaborative divorce involves more professionals than mediation. Therefore, it is likely to cost more than mediation, although probably less than litigation. Like mediators, the collaborative lawyers need to be skilled in communicating effectively and accurately.

Ordinarily, both spouses and their attorneys sign a “no court” agreement that requires the attorneys to withdraw from the case if a settlement is not reached and the case goes to court.

Do I Need to Hire a Lawyer or Other Professionals?

In both mediation and collaboration, you might want help from other professionals, such as child custody specialists and financial analysts. If you mediate, you may seek advice from a divorce lawyer known as a “consulting attorney.” But, no matter how many people get involved, you—not your advisers—are in control of the process. They are there to help you successfully mediate or collaboratively negotiate your case. The mediator or the collaborative lawyers help you keep any other advisers on track so that things don’t spin out of control.

How Does Mediation or Collaboration Fit into the Legal Divorce?

Eventually, you will get a court order saying you are legally divorced. This means you will need to have some contact with a domestic relations or family court. Through mediation or collaboration, you can keep that contact brief and manageable. Once you use mediation to reach agreement on all the issues, you’ll make the legal part of the divorce a simple, uncontested procedure that doesn’t require a trial or contentious hearings on points of evidence and pretrial maneuvers.

Are You and Your Spouse Suited for Mediation or Collaboration?

Alas, mediation doesn’t work for everyone. Nor does collaborative divorce. There are some people who conclude that the assistance and advocacy of an adversarial lawyer is needed, despite the cost and emotional toll of a contested case. If you are unsure about whether mediation or collaboration is right for you, check out Chapter 4, Deciding to Mediate or Collaborate. There you will find a short self-test you can complete, to see if your circumstances favor a non-adversarial approach like mediation or collaboration.

Why Mediate or Collaborate? Consider the Alternative

We live in an adversarial culture, so it’s no surprise that our legal system is adversarial as well. If you doubt this, note how the media thrives on reporting conflict in and out of court. In our legal system, every court case is like a war or a duel. The opposing party is an enemy who cannot be trusted. We hire lawyers to attack the other side and “protect” us, our property, and our honor. Lawyers plan their strategies carefully, trying to get the best advantage for their clients and crush the opposition. Often, cases settle at the last minute, with no one feeling very good about it.

If the case doesn’t settle, the lawyers do battle in the courtroom before a judge and maybe a jury—although juries are rarely involved in divorce cases. At the end of the case, the judge considers everything that has been presented and decides the outcome. Sometimes there is a clear “winner.” Sometimes both sides feel like they’ve lost. Often, no one feels that justice has been done—mainly because the result has been dictated by laws that seem fair to no one. And, to add insult to injury, when the dust settles both sides realize that whatever money or property they were fighting over has been depleted by legal fees.

Taking a case through an adversarial legal proceeding is called “litigation.” Litigation is extremely expensive because of the hours spent by the lawyers in assembling information, investigating, and preparing for trial, in addition to the time spent in trial, which can be days, weeks, or even months. Litigation is also very time-consuming and emotionally draining for the parties in the lawsuit.

Litigation is a terrible way to make the personal decisions that a divorce entails—decisions that will affect you, your spouse, and your children for a long time to come. But litigation is the way those decisions will be made if you and your spouse can’t come up with an agreement.

When you litigate your divorce, your spouse becomes your intimate enemy. Your adversarial lawyer will probably advise you not to talk to your spouse directly about the issues, but to communicate through your lawyer. Not only is this expensive, but it can lead to serious misunderstandings that further erode trust and respect between you and your spouse. And imagine what harm it can do to your children.

Ellen and Joe’s story, below, provides a real-world example of how misunderstandings can spin out of control. Unfortunately, Ellen and Joe’s scenario, or some form of it, is played out in countless divorces across the country every year. Even though most divorce cases settle before an actual court trial, and even though some lawyers try to downplay the adversarial aspects of a litigated divorce case, many divorcing couples experience the embittering effects that litigation tends to produce as their lawyers spar with each other, often on the basis of incomplete or inaccurate information. Minor misunderstandings that could have been cleared up with a direct conversation, like the change of address snafu in Joe and Ellen’s case, instead ignite major conflagrations.

Fortunately, there are alternatives to adversarial divorce litigation. In fact, there are several alternatives, as discussed below. For most people, the best of those alternatives is either mediation or collaborative divorce, or sometimes a combination of the two.

real world example

Ellen and Joe: From bad to worse. Ellen and Joe are getting divorced after 15 years of marriage. While their breakup hasn’t always been easy, they both want to be fair in the divorce. Following the advice of their relatives and friends, each has hired a lawyer to handle the divorce case. Getting divorced is bad enough, but when they stop talking and hire adversarial lawyers, things get worse.

Ellen and Joe have several mutual funds and other investments that are managed by a financial planning firm called XYZ Company. When Joe moves out of the house that he and Ellen have been living in, he calls the broker at XYZ Company and leaves a message letting the broker know his new address. The broker’s assistant takes the message and puts in for a change of address on all of the mutual funds and other investments jointly owned by Ellen and Joe. Joe is unaware that this has been done.

A month or so goes by and Ellen realizes that she hasn’t received statements for the investments. She calls XYZ Company and is informed that Joe changed the mailing address on all the accounts the previous month. Ellen’s first impulse upon learning this is to call Joe and demand an explanation. If she did so, she would learn that this was not something Joe did, and the problem would be cleared up.

Instead, following her lawyer’s advice, Ellen does not contact Joe but passes the information on to her lawyer.

Ellen’s lawyer tells her she needs a restraining order requiring that the addresses be reinstated and preventing Joe from taking similar actions in the future. The lawyer also recommends a court order putting a freeze on all investments and bank accounts. The lawyer fires off a letter to Joe’s lawyer and proceeds to file a motion (written request) with the court. Joe’s lawyer responds to Ellen’s restraining order requests with counterattacks and requests on behalf of Joe. Soon, what could have been a civil and respectful end to the marriage has mushroomed into an antagonistic and expensive court battle.

Divorce Decision Spectrum

When discussing mediation, legal experts often put it into a category generally referred to as “alternative dispute resolution,” or ADR, because mediation is an alternative to adversarial litigation. The D in ADR underscores the problem with using litigation to decide divorce issues. The assumption is that there is a dispute that must be resolved, either in litigation or in an alternative process. For most divorcing couples, this assumption is incorrect.

It’s true that divorcing spouses have many decisions to make, and they may have different points of view on those decisions. But this doesn’t mean that they have an actual dispute that has to be resolved. They may simply need help making the decisions together. Often, the questions are just how much and what kind of help they need. So step away from the adversarial assumptions. Rather than looking at resolving your divorce issues through either adversarial litigation or an alternative to it, consider your options in terms of a spectrum (sliding scale) of different ways you and your spouse can make the decisions you need to make in order to get divorced.

Divorce Decision Spectrum

Most Control Least Expense

Least Control Most Expense

Do your own divorce

Mediation

(one neutral person assists you to reach a decision)

Collaboration

(collaborative lawyers help you decide)

Nonadversarial

(lawyers negotiate—see Chapter 8)

Arbitration

(neutral third person decides)

Litigation

As you can see, you retain the most control and spend the least money if you and your spouse do your own divorce from beginning to end. At the other extreme, where you have the least control and spend the most money, is adversarial litigation. In between are several options.

Unless you and your spouse feel completely comfortable with your ability to negotiate everything yourselves and do all your own paperwork for the divorce, you will probably want some professional help. Mediation or collaboration is the next-best option on the continuum. It provides the specific help you need while keeping costs down and letting you stay in control of what happens.

Mediation or Collaboration: Still a Better Option for Divorcing Same-Sex Couples

Regardless of the outcome of the legal wrangling over marriage equality, most same-sex couples are better off settling the breakup in a private setting such as mediation or collaboration. In addition to all the reasons that mediation and collaboration make sense for most divorcing couples, there are aspects unique to same-sex breakups that make this especially true.

Privacy

Being a lesbian or gay man has gotten easier with changing attitudes, but that doesn’t mean homophobia is nonexistent. Depending on your circumstances, getting divorced in the public courts may involve coming out in ways that you don’t want. Of course, in order to be divorced, you will still have to get a divorce decree, and that is usually a public record. But if everything is settled out of court, you will be a footnote in the courthouse files as opposed to having your case argued in crowded dockets over the course of the six months or more that it takes to resolve the issues through the courts.

Supportive Professionals

If you take your case to court, you can’t pick your judge or any of the court staff handling your case, including child custody investigators or evaluators. And your choice of an attorney could be limited to attorneys practicing before the court where your residence is located. So you could be stuck dealing with professionals who are insensitive to your needs and concerns, if not downright hostile.

In contrast, if you and your spouse mediate, you can be more selective in choosing a supportive mediator and consulting lawyers or other advisers to help you negotiate your settlement. Similarly, if you choose to take a collaborative approach, you can look for attorneys or other collaborative team members who will contribute positively to your settlement.

Customized Solutions

A major advantage of mediation and collaboration for every divorcing couple is the potential for outside the box thinking in coming up with a settlement. This can be especially true for divorcing same-sex couples. Gay and lesbian relationships usually don’t fit into traditional marital and gender roles and expectations, so divorce laws built around those roles and expectations don’t readily apply. Mediation and collaboration allow you to create a customized settlement that takes your unique relationship into account.

Simply a Better Option

Neither mediation nor collaboration is a silver bullet for any divorcing couple, gay or straight. They won’t eliminate the stress and pain of a breakup, but these non-adversarial options can make the process a little smoother and less costly, both emotionally and financially. If you think the two of you can—with help—work toward a settlement you both can live with, then no matter what the outcome, you are likely to be better off at the end of it than if you hadn’t tried.

You’ve Decided to Mediate: When Do You Start?

You and your spouse want to mediate your divorce agreement. Should you file for divorce first?

There is no one answer that works for everyone. One of the great things about mediation is its flexibility. Except for court-mandated mediation, it is a private, voluntary process, and you can pick the timing that works for you. In most cases, it is best not to get started with a court case until you have eliminated the potential for a court fight by signing an agreement settling all the issues. That way, the divorce case is simplest and least expensive, since it begins and ends as an uncontested case. But sometimes there is a reason to get the clock running on a divorce waiting period, or maybe you have already started a divorce proceeding before deciding to mediate. If so, mediation can still work quite well. Just make sure to work with each other (and your consulting lawyers, if you have them) to put the divorce case “on hold” while you negotiate an agreement in mediation.

Divorce Law in Your State: How to Get Accurate Information

If you mediate or collaborate, your mediator or collaborative lawyer will help you understand your legal rights and how divorce laws work in your state. But if you are like most folks, you will be anxious to know the basics before you start. The trick is to get solid information that is not misleading or slanted by an adversarial perspective. Here are some suggestions.

Get an Overview of Your State’s Divorce Rules and Procedures

Divorce rules and procedures vary by state, including what the legal grounds are for divorce, residency requirements, how property is divided, and how child support and custody decisions are made. For a good overview of these issues, check out the “Divorce Basics” section for your state on www.divorcenet.com. This site provides a wealth of free state-specific information on divorce, from child custody and child support to property division to alimony and more. You can also do your own legal research, after consulting Chapter 8 of this book.

You’ll also find a lot of useful information on state divorce laws, forms, and resources on your state’s court website (see Appendix B for a list), including information on court-sponsored mediation (a topic discussed at length in Chapter 14).

Finally, for an extensive guide to the divorce process, check out Nolo’s Essential Guide to Divorce, by Emily Doskow. This comprehensive book covers everything from the different types of separation and kinds of divorce to the details of contested divorces and trials.

Consult With a Family Law Attorney

In addition to doing your own legal research, you may find it useful to do a one-time consultation with a family law practitioner who supports mediation and collaborative divorce and who can explain divorce law in your state, and your basic rights when it comes to property, custody, alimony, and the like. (See “Finding and Using a Consulting Lawyer” in Chapter 2 and the “Legal Adviser” section in Chapter 8 for details.)

Getting the Most Out of This Book

The first four chapters are must reading for everyone, and will help you use this book most effectively. Then, depending on your situation, the remaining chapters will help you go through the mediation or collaborative process step by step.

Here’s a brief overview of what you’ll find where (see the table of contents for more detail):

how mediation or collaboration fit into the uncontested divorce, from filing the initial court papers to getting the judge’s signature on the divorce decree (Chapter 1)

how to decide whether and when to mediate or use a collaborative process (Chapters 2 through 4)

how to get your spouse to agree to mediate or collaborate (Chapter 5)

finding the right mediator or collaborative lawyer for your situation (Chapters 6 and 7), and

preparing for mediation or collaborative divorce (Chapters 9 and 10).

By carefully reading this book, you’ll learn how to:

select and work with lawyers, accountants, and other advisers while you are going through the process (Chapter 8)

communicate and negotiate effectively in mediation or collaboration (Chapters 12 and 13)

deal with problems that arise (Chapter 15)

write up your divorce (separation or marital settlement) agreement in a binding and legally enforceable agreement (Chapter 16), and

much much more, including special issues for same-sex couples divorcing (Chapter 17).

To illustrate several of the points in this book, we’ll introduce you to several fictional couples, such as Joe and Ellen in this chapter (an example of costly adversarial litigation), and Robert and Fran in Chapter 2 (an insider’s view of a typical divorce mediation).

Finally, we provide useful worksheets and forms to help you find the right mediator or collaborative attorney, organize your financial information, work on developing a plan for custody and timesharing, and more.

reminder:

Let your mediator or collaborative lawyer be your guide. We’ve tried to cover the major issues that may arise in mediation or collaboration. But if your mediator or your lawyer tells you something inconsistent with what we’re saying here, and if it sounds reasonable in the context of what you are going through, feel free to ignore our suggestions and go with what your mediator or lawyer tells you.

Key Terms Used in This Book

We use certain terms throughout this book that have specific meanings, which we define when they come up. But there are a few terms we use so often that it makes sense to define them now.

Marriage. When we use this term we are usually referring not only to the legal relationship called marriage that is recognized in your state, but also to any civil union or domestic partnership that is recognized in your state. Just which relationships are recognized in which states is changing all the time (see Chapter 18 for details).

Spouse. We use this term rather than “husband” or “wife” because it can refer to either gender.

Divorce. This refers to the legal process of ending a marriage, although the technical legal word for divorce in your state might be different, such as “dissolution of marriage.”

Unmarried couple. If you are ending a nonmarital relationship (whether an opposite-sex or same-sex couple), you will not follow the same legal process for ending a marriage. Many unmarried couples find mediation or collaboration a useful way to end their relationship, and deal with such issues as child custody or division of property, as well as emotional and social issues. (See Chapter 19 for details.)

Forms

This Book Comes With a Website

Nolo’s award-winning website has a page dedicated just to this book, where you can:

DOWNLOAD FORMS - All forms in this book are accessible online. After purchase, you can find a link to the URL in Appendix A.

KEEP UP TO DATE - When there are important changes to the information in this book, we will post updates

And that’s not all. Nolo.com contains thousands of articles on everyday legal and business issues, plus a plain-English law dictionary, all written by Nolo experts and available for free. You’ll also find more useful books, software, online services, and downloadable forms.